Administrative Law

The Appropriate Appropriations Inquiry

Chad Squitieri

Abstract The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause […]

The New Pornography Wars

Julie Dahlstrom

Abstract The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti- trafficking lawsuits against MindGeek […]

Super Deference and Heightened Scrutiny

Jonathan H. Adler

Abstract Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call “super deference.” While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there […]

Examining the Committee on Infractions’s Affirmation Rate of NCAA Enforcement Staff Allegations of Rules Violations

Josh Lens

Abstract The NCAA, the national governing body for college athletics, is in a precarious position. Battered by recent lawsuits, the NCAA is undergoing a self-initiated review designed to modernize and transform its operations through updating its constitution and rules.The enforcement process through which the NCAA enforces its myriad regulations has proven central to this review […]

Too Big and Unable to Fail

Written by: Stephen J. Lubben & Arthur E. Wilmarth, Jr.

Abstract Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this […]

Emily S. Bremer, The Unwritten Administrative Constitution

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, […]

Ellen English, “Camels Agree with your Throat" and Other Lies: Why Graphic Warnings are Necessary to Prevent Consumer Deception

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued […]

Robert J. Pushaw, Jr., The Paradox of the Obamacare Decision: How Can the Federal Government have Limited Unlimited Power?

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective […]

Brett McDonnell, Dampening Financial Regulatory Cycles

Financial regulation should be countercyclical, strengthening during speculative booms to contain excessive leverage and loosening following crises so as to not limit credit extension in hard times. And yet, financial regulation in fact tends to be procyclical, strengthening following crises and loosening during booms. This Article considers competing descriptive and normative analyses of that procyclical tendency. All of the models and […]

Nicole Kuncl, Seeing Red: The Legal Backlash Against Red-Light Cameras in Florida

This Note will examine Florida’s Mark Wandall Traffic Safety Act, which authorizes the use of traffic infraction detectors (red-light cameras) to enforce traffic laws. Florida, like many other states, currently finds itself in the midst of a heated debate over the use of red-light cameras to issue traffic citations. Strong arguments can be made both […]

Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure […]

Richard A. Epstein, Dunwody Distinguished Lecture in Law: The Constitutional Paradox of the Durbin Amendment: How Monopolies are Offered Constitutional Protections Denied to Competitive Firms

63 Fla. L. Rev. 1307 (2011)| | | | The Durbin Amendment is the first of the major provisions of the Dodd-Frank Act to have been implemented-but only after it withstood a constitutional challenge on the basis of the Takings Clause in the U.S. Court of Appeals for the Eighth Circuit. Now that the Amendment […]

J.C. Van Lierop III, Post-9/11 Army Disability Decisions: Reinforcing Administrative Law Principles in Fitness and Disability Rating Determinations

61 Fla. L. Rev. 639 (2009) | | | | INTRODUCTION :: Counter-Intuitive Trends in an Army at War “[T]o care for him who shall have borne the battle, and for his widow, and his orphan . . . .” -Abraham Lincoln The terrorist attacks of September 11, 2001 catalyzed two wars in Afghanistan and […]

Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation

59 Fla. L. Rev. 383 (2007) | | | | ABSTRACT :: This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large […]

Jeffrey A. Bekiares, In Country, on Parole, out of Luck-Regulating away Alien Eligibility for Adjustment of Status Contrary to Congressional Intent and Sound Immigration Policy

58 Fla. L. Rev. 713 (2006) | | | | INTRODUCTION :: Immigrants are a daily part of American life. They work in every sector of the economy and form strong social and familial bonds in the community. The legislative and cultural history of the United States has encouraged immigration as a constant source of […]

Bryan T. Camp, Tax Administration as Inquisitorial Process and the Partial Paradigm Shift in the IRS Restructuring and Reform Act of 1998

56 Fla. L. Rev. 1 (2004) | | | | INTRODUCTION :: The tax code is a puzzle. Whether one views it as an engaging enigma or a ridiculous riddle, the tax code requires careful and considered attention to fit the statutory pieces together to form a sensible picture. The procedural pieces of the puzzle, […]